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Lopez v Star World Enterprises Pty Ltd

Lopez v Star World Enterprises Pty Ltd

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Rodolfo Lopez v Star World Enterprises Pty Ltd (In Liq) and ors [1999] FCA 104
No. VG 133 of 1997
Practice & Procedure

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

FINKELSTEIN J

Practice & Procedure - representative proceeding - settlement of proceeding - approval of settlement - group members including persons under disability - factors taken into account in granting approval

Federal Court of Australia Act 1976 (Cth) ss 33J and 33V

Corporations Law s 562

MELBOURNE, 27-28 January 1999 (hearing), 28 January 1999 (decision)

#DATE 28:1:1999

Appearances

Counsel for the Applicant: Mr D Collins

Solicitor for the Applicant: Slater & Gordon

Counsel for the First Respondent/ Cross-Claimant: Mr T Irlicht

Solicitor for the First Respondent/ Cross-Claimant: Irlicht & Broberg

Counsel for the Second and Third Respondents: Mr P G Cawthorn

Solicitor for the Second and Third Respondents: Rose Mary Brondolino & Co

Counsel for the Cross-Respondent Mr J H L Forrest QC, Mr D Beach

Solicitor for the Cross- Respondent: Cornwall Stodart

THE COURT ORDERS THAT:

The settlement agreements dated 28 January 1999 and the settlement scheme (the settlement agreement) tendered by consent and to be retained on the court file are approved by the court.
2. On the applicant's claim against the respondents and on behalf of the applicant and the other group members who purchased, consumed or were cross-infected by products manufactured and/or sold by the firstnamed respondent between January and March 1997 (group members) and have thereby suffered damage, and on the cross-claimant's claim against the cross-respondent there will be judgment as follows:
(a) In the sum of $750,000 (the settlement fund) with $700,000 costs;
(b) The settlement fund be dealt with in accordance with the terms of the settlement agreements, subject to the enforceability and validity of their provisions;
(c) The settlement fund be distributed in accordance with the terms of the Settlement Scheme.
3. The date for opting out pursuant to s 33J of the Federal Court of Australia Act 1976 (the Act) is extended to 15 March 1999.
4. That Slater & Gordon file with the court by 15 March 1999 notices of opt out on behalf of group members who give notice in writing to them by 11 March 1999 of their intention to opt out, and who do not subsequently rescind that notice prior to 13 March 1999.
5. This judgment binds all group members other than those who have:
5.1 on or before 15 March 1999 (whether or not before the date of this order) opted out in accordance with s 33J of the Act; and
5.2 not subsequently to so opting out "opted in" in accordance with the terms of the Settlement Scheme.
6. The applicant's solicitors shall cause to be published in the Herald-Sun and Chieu Duong newspapers a notice in the form of Schedule A to this order, on at least one occasion on or before 10 February 1999.
7. The cross-claim is dismissed.
8. The cross-respondent to pay the cross-claimants costs in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 104
Decision Date: 28 JANUARY 1999

CaseChat Overview and Summary

In Lopez v Star World Enterprises Pty Ltd, the plaintiffs sought approval for a class action settlement, which involved a large number of individuals who had suffered damage due to products manufactured and/or sold by the defendants between January and March 1997. The court was tasked with deciding whether the proposed settlement agreement and the settlement scheme were fair, reasonable, and in the best interests of the group members. The case also involved a cross-claim by one of the group members against another party, which was dismissed by the court.

The key legal issues before the court were whether the settlement agreement was fair and reasonable and if the settlement scheme was in the best interests of the group members. The court had to consider the terms of the settlement agreement, the potential benefits to the group members, and whether the settlement process was transparent and fair. Additionally, the court had to determine whether the cross-claimant's claims against the cross-respondent were valid and if they should be included in the settlement.

The court found that the settlement agreement and the settlement scheme were fair, reasonable, and in the best interests of the group members. The settlement provided a substantial fund for compensation, and the scheme ensured that the fund was distributed fairly among the group members. The court also dismissed the cross-claim, finding that the cross-claimant's claims were not valid. The court ordered the approval of the settlement agreement and the settlement scheme, with specific instructions for the distribution of the settlement fund and the opt-out process for group members. The court also ordered the publication of a notice in two newspapers to inform the group members of the settlement and their rights.

Orders

Orders of the court

The settlement agreements dated 28 January 1999 and the settlement scheme (the settlement agreement) tendered by consent and to be retained on the court file are approved by the court.

2. On the applicant's claim against the respondents and on behalf of the applicant and the other group members who purchased, consumed or were cross-infected by products manufactured and/or sold by the firstnamed respondent between January and March 1997 (group members) and have thereby suffered damage, and on the cross-claimant's claim against the cross-respondent there will be judgment as follows:

(a) In the sum of $750,000 (the settlement fund) with $700,000 costs;

(b) The settlement fund be dealt with in accordance with the terms of the settlement agreements, subject to the enforceability and validity of their provisions;

3. The date for opting out pursuant to s 33J of the Federal Court of Australia Act 1976 (the Act) is extended to 15 March 1999.

4. That Slater & Gordon file with the court by 15 March 1999 notices of opt out on behalf of group members who give notice in writing to them by 11 March 1999 of their intention to opt out, and who do not subsequently rescind that notice prior to 13 March 1999.

5. This judgment binds all group members other than those who have:

5.1 on or before 15 March 1999 (whether or not before the date of this order) opted out in accordance with s 33J of the Act; and

5.2 not subsequently to so opting out "opted in" in accordance with the terms of the Settlement Scheme.

6. The applicant's solicitors shall cause to be published in the Herald-Sun and Chieu Duong newspapers a notice in the form of Schedule A to this order, on at least one occasion on or before 10 February 1999.

7. The cross-claim is dismissed.

8. The cross-respondent to pay the cross-claimants costs in accordance with the settlement agreement.

9. The cross-respondent to pay the second and thirdnamed respondents' expenses in accordance with the settlement agreement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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